Kasi v. Angelone

• Decision Date: 15 August 2002
• Docket Number: No. 02-2.,02-2.
• Citation: 300 F.3d 487
• Parties: Mir Aimal KASI, Petitioner-Appellant, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 487

300 F.3d 487

Mir Aimal KASI, Petitioner-Appellant, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent-Appellee.

No. 02-2.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 2002.

Decided August 15, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

ARGUED: Richard Joshua Cromwell, McGuire Woods, L.L.P., Norfolk, Virginia; Charles Russell Burke, Virginia Beach, Virginia, for Appellant. Katherine P. Baldwin, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Jerry W. Kilgore, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

Before WILKINS, TRAXLER, and KING, Circuit Judges.

Dismissed by published opinion. Judge TRAXLER wrote the opinion, in which Judge WILKINS and Judge KING joined.

OPINION

TRAXLER, Circuit Judge.

Petitioner Mir Aimal Kasi was convicted by a Virginia state court jury of capital murder, murder, malicious wounding, and related firearm charges arising out of the slaying of two Central Intelligence Agency ("CIA") employees and the shooting of three others as each was en route to work on January 25, 1993. The Virginia Supreme Court upheld the convictions and sentences on direct appeal, and denied Kasi's petition for state habeas relief. Kasi now appeals the district court's denial of his federal petition for writ of habeas corpus, see 28 U.S.C.A. § 2254 (West 1994 & Supp.2002), raising a number of claims. Because the state court's decisions are neither contrary to, nor an unreasonable application of, clearly established federal law, as decided by the Supreme Court, we conclude that Kasi is not entitled to habeas relief. Accordingly, we deny Kasi a certificate of appealability, and dismiss his appeal.

I.

A.

According to the facts as found by the Virginia Supreme Court, see Kasi v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998), on the morning of January 25, 1993, a gunman stopped his automobile behind a line of automobiles waiting to turn into the main entrance to the headquarters of the CIA in Fairfax County, Virginia, emerged from his vehicle, and opened fire on the other drivers with an AK-47 assault rifle. Frank Darling and Lansing Bennett, both of whom were employed by the CIA, were killed. Nicholas Starr, Calvin Morgan, and Stephen Williams, also employees of the CIA, were wounded. All five victims were driving separate automobiles.

The gunman was subsequently identified as Mir Aimal Kasi, a/k/a Mir Aimal Kansi, a native of Pakistan who was working as a driver for a local courier service and living in an apartment in Reston with a friend, Zahed Mir, at the time of the shootings. Kasi fled to his home country the day after the shootings and, two days later, was reported to police as a "missing person" by Zahed Mir. On February 8, 1993, police searched Mir and Kasi's apartment and discovered the weapon used in the shootings. Kasi had purchased the gun in Fairfax County three days before the shootings.

On February 16, 1993, Kasi was indicted in Virginia state court for the capital murder of Darling as part of the same act that killed Bennett, see Va.Code Ann. § 18.2-31(7) (Michie Supp.2001); the murder of Bennett, see Va.Code Ann. § 18.2-32 (Michie Supp.2001); the malicious woundings of Starr, Morgan, and Williams, see Va. Code Ann. § 18.2-51 (Michie 1996); and five charges of using a firearm in the commission of these felonies, see Va.Code Ann. § 18.2-53.1 (Michie 1996). Shortly thereafter, an unlawful flight warrant was issued for Kasi by a United States Magistrate Judge in the Eastern District of Virginia, and the CIA and FBI embarked upon an extensive investigation to locate and return Kasi to the United States for trial.

Over the next four and one-half years, Kasi remained uncaptured, traveling in Afghanistan and returning to Pakistan only for brief visits. Then, in the early morning hours of June 15, 1997, FBI agents, including Agent Bradley J. Garrett, located and abducted Kasi from a hotel room in Pakistan. He was hooded, shackled, and transported by vehicle and air to an undisclosed location where he was held in a jail-like facility. Two days later, Kasi was transported by military aircraft from Pakistan to Fairfax County, Virginia, still in the custody of FBI agents, and delivered to the Commonwealth of Virginia for prosecution. The place of Kasi's detention prior to his being returned to the United States, and the identities of any foreign persons involved in his capture and return, have not been disclosed due to security concerns.

During the flight to the United States, Kasi signed a written waiver of his rights and gave an oral and written confession to the crimes to Agent Garrett. The confession was summarized by the Virginia Supreme Court as follows:

In the written statement, [Kasi] confirmed he purchased the AK-47 rifle and about 150 rounds of ammunition several days before the incident in question. He said he drove his pickup truck to the scene, "got out of my vehicle & started shooting into vehicles stopped at a red light." Continuing, he stated that "I shot approximately 10 rounds shooting 5 people. I aimed for the chest area of the people I shot. I then returned to my truck & drove back to my apartment." He also stated that "several days before the shooting I decided to do the shooting at the CIA or the Israeli Embassy but decided to shoot at the CIA because it was easier because CIA officials are not armed."

As part of his oral statement to Garrett, [Kasi] enumerated political reasons "why he wanted to do this shooting." He said he was "upset" because U.S. aircraft had attacked parts of Iraq, he was "upset with the CIA because of their involvement in Muslim countries," and he was concerned with "killing of Pakistanians by U.S. components." When Garrett asked [Kasi] "why he stopped shooting," he replied "there wasn't anybody else left to shoot." When asked about the gender of those shot, [Kasi] replied "that he only shot males because it would be against his religion to shoot females."

Kasi, 508 S.E.2d at 61-62.

Upon his return to Virginia, Kasi was appointed counsel, and pled not guilty to the indictment. On November 10, 1997, after a six-day trial, the jury convicted Kasi of the charges in the indictment. For the first-degree murder of Bennett, the jury fixed Kasi's sentence at life imprisonment plus a $100,000 fine. On each of the malicious shooting convictions, the jury fixed Kasi's punishment at 20 years imprisonment and a fine of $100,000; and for the five firearms offenses, the jury fixed Kasi's punishment at two years for the first conviction and four years for each of the other four convictions.

A separate three-day capital sentencing proceeding was held on November 14, 1997 for the capital murder of Darling, see Va. Code Ann. § 19.2-264.4 (Michie 2000), after which the jury fixed Kasi's punishment for the murder of Frank Darling at death, based upon a finding that the offense was "outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or an aggravated battery to the victim." Va.Code Ann. § 19.2-264.2 (Michie 2000). The state trial court thereafter imposed the sentences as recommended.

On direct appeal, the Virginia Supreme Court affirmed Kasi's conviction and death sentence, see Kasi, 508 S.E.2d at 68, and the United States Supreme Court denied his petition for writ of certiorari, see Kasi v. Virginia, 527 U.S. 1038, 119 S.Ct. 2399, 144 L.Ed.2d 798 (1999). Kasi then filed a petition for a writ of habeas corpus in the Virginia Supreme Court. The court dismissed the petition, and denied rehearing, and the United States Supreme Court again denied certiorari review. See Kasi v. Angelone, 531 U.S. 894, 121 S.Ct. 223, 148 L.Ed.2d 158 (2000).

B.

After obtaining a stay of the state court's order of execution from the United States District Court for the Eastern District of Virginia, Kasi filed a petition for writ of habeas corpus under 28 U.S.C.A. § 2254 in the district court. In the petition Kasi raised three claims pertinent to this appeal:

1. The trial court lacked personal jurisdiction over him because he was abducted in violation of an Extradition Treaty in force between the United States and Pakistan;

2. He was improperly denied access to material evidence possibly favorable to his defense by the trial court's refusal to enforce subpoenas served on the FBI, CIA, and other federal agencies; and

3. The trial court compromised his right to trial by an impartial jury by refusing his request to conduct individual voir dire of the jury members to determine if they had acquired knowledge of the murder of four Americans which had occurred in Karachi, Pakistan, while Kasi's trial was in progress.

See Kasi v. Angelone, 200 F.Supp.2d 585, 591 (E.D.Va.2002).¹ The magistrate judge concluded that all claims were exhausted, see 28 U.S.C.A. § 2254(b)(1)(A), but that none entitled him to habeas relief, see 28 U.S.C.A. § 2254(d), and recommended that the habeas petition be dismissed. The district court adopted the recommendation, dismissed the petition, and denied Kasi a certificate of appealability under 28 U.S.C.A. § 2253(c)(2) (West Supp.2002) (providing that, in order to obtain a certificate of appealability, the petitioner must make "a substantial showing of the denial of a constitutional right"). See Kasi, 200 F.Supp.2d at 602.

C.

On appeal, the Commonwealth asserts that we are barred from considering Kasi's first claim under 28 U.S.C.A. § 2254(e) because Kasi seeks to rely upon evidence that was not first presented to the state court for its consideration. The Commonwealth asserts that we are also barred from considering Kasi's remaining two claims because he either did not exhaust the claims in state court or procedurally defaulted the claims in the state court proceedings. Alternatively, the Commonwealth asserts that all three claims...